HLN (formerly “Headline News”) recently called me to help them explain/discuss the legal issues in a very interesting case about whether a “surrogate” mother is also a legal mother (To see the interview, click here: /video).
The case arose when a woman who could not have kids of her own agreed to have a child with a long time male friend. They decided to use a donor egg, his sperm and she would carry the baby. But when she gave birth, she was immediately served with papers saying that he was the only legal parent and would be raising the child with his male lover/partner. They even obtained a restraining order to prevent her from breastfeeding. We don’t know what documents were signed (but it was likely a “surrogacy” agreement disclaiming any rights to the child, probably thinking she was merely signing documents needed to get the donated egg), but no matter what, she was devastated. And the interesting legal point is: Is a surrogate mother a legal mother? What happened? What did she sign? Was she defrauded? Do the normal rules of contracts (meeting of the minds, absence of fraud) even apply, or should there be a higher standard to meet before the father can enforce such a contract. As of the time I was interviewed, the father had custody and the woman (should we call her the mother?) was suing to get rights to the children.
So why is this such a new thing? Because artificial insemination is only thirty years old. Before that there was no possibility of such a problem. And even then, it was all very controlled. Now that surrogacy and ART (Artificial Reproductive Technology) is becoming commonplace, this issue, and many like it are arising and challenging us. Law vs morality. Social values vs. strict contract terms. And that is where we as lawyers can help. Until the legislatures of the states and perhaps of the United States can predict and resolve all such dilemmas in advance, great lawyering and judging will have to get us through.
As the Chair Elect of the ABA’s Family Law Section, I have made it clear that one of my priorities will be to focus on international custody issues. Given the many widely reported cases of international kidnapping and custody battles, such as the Goldman case, it seems we must focus more on these situations to protect all children.
But now there are much more complex issues relating to children across the globe which go beyond mere custody battles. Issues such as surrogacy and adoption. What if one country’s laws do not allow for a certain type of adoption or a certain type of articifial insemination? There are now ways to work around laws in one country by using another country as a vehicle for certain procedures. And this can be dangerous.
A recent Wall Street Journal article entitled “Assembling the Global Baby” discussed these issues in fine detail (click here for a link to the story). There are American companies orchestrating surrogacy and reproductive technology across the globe. While the term “orchestrating” may sound negative, that was not my intent. My intent was to demonstrate the internationalization of child related issues. What body or organization will set the rules? Is this something for the United Nations to look at? Conferences like The Hague will certainly look at these issues, but then a country’s willingness to sign a treaty is purely voluntary.
This internationalization of child birth, adoption and reproduction may be a very good thing. It seems very well intended. The problem is with the unintended consequences. When things go wrong, who is accountable? Which country’s laws apply? Is it more important where the birth occurs, where the semen was taken, where the parties live or which country the egg came from? These are fascinating issues that we must consider before they overwhelm us. I have no idea where we go from here, but I am sure that we need to start asking the right questions which will hopefully lead us to the right answers, or at least to the right forums and formats for seeking comprehensive answers to these emerging issues.
In 1978. That was the first time in the history of the world that a child was conceived outside of a mother’s body (an egg being fertilized in a dish), and then successfully carried through pregnancy to life by the mother. Until then, we were always certain that if a mother delivered a child, it was her biological child since her egg was fertizlized within her body, even if the sperm was donated. In 1978, everything changed. The child was Baby Louise and her story can be found via an easy internet search (you can read more about her story by clcking here). That was the start of successful in vitro fertilzation and the start of a brand new area of law.
I write about this since a guest lecturer for the Domestic Relations Law School course I teach discussed it last night. Ruth Claiborne is a leader in the legal field of assisted reproductive technology (ART) and her insights made for an exciting and interesting class.
From that day back in 1978, the field of ART has exploded. So have legal quandries surrounding it. Frozen embryos, inheritance by an embryo, custody battles between a surrogate mother and the biological mother, adoption of children not yet born and other legal quagmires have made this area of the law fascinating. There is a growing interest in ART among lawyers and non-lawyers. At our Spring and Fall ABA Family Law Section seminars, we are seeing more and more programs dealing with these topics. The leaders in this field, including attorney Steven Snyder and Professor Charles Kindregan and many others have generously given their time and talent to educating other lawyers about this new and emerging are of the law.
And these issues are everywhere. They have impacted almost every area of family law. For instance, some opponents of gay marriage used to argue that marriage was only for people who could procreate. Well that argument is now gone, or severely dimished since a same sex couple can now have a baby using donated sperm or a donated egg.
By no means am I an expert in this area. To the contrary, I still feel often like a little boy in science class learning new things. Last night during my law school class, I had that feeling again, and it was great.